exv10w31









    EXHIBIT 10.31



 




    EXECUTIVE
    EMPLOYMENT AGREEMENT



 



    THIS EXECUTIVE EMPLOYMENT AGREEMENT
    (“Agreement”) is effective August 1, 2008, by
    and between Sarah McConnell (“Executive”) and
    ABM Industries Incorporated, a Delaware corporation
    (“Company” or “ABM”).



 



    1. EMPLOYMENT.  In consideration of the
    terms and commitments contained in this agreement, Executive
    agrees to and acknowledges the following:



 



    2. TERM, RESPONSIBILITIES AND TITLE.  This
    agreement shall end on October 31, 2010, unless sooner
    terminated pursuant to Section 7 (“Initial
    Term”). Employment may be extended pursuant to
    Section 6 (“Extended Term”). Executive shall
    assume and perform such duties, functions and responsibilities
    relating to Executive’s employment with Company as may be
    assigned from time to time by the Company. Executive’s
    title shall be Senior Vice President, General Counsel and
    Corporate Secretary of Company, subject to modification as
    determined by the Company’s Board of Directors
    (“Board”).



 



    3. COMPENSATION.  Company agrees to
    compensate Executive, and Executive agrees to accept as
    compensation in full, a base salary. Employee will also be
    eligible for short-term incentive awards pursuant to the terms
    of the Performance Incentive Program (“Bonus”), to
    participate in the 2006 Equity Incentive Program and for such
    perquisites as are from time to time received by similarly
    situated executives.



 



    4. COMPLIANCE WITH LAWS AND
    POLICIES.  Executive shall dedicate
    his/her full
    business time and attention to the performance of duties
    hereunder, perform
    his/her
    duties in good faith and to a professional standard, and fully
    comply with all laws and regulations pertaining to the
    performance of this Agreement, all ethical rules, ABM’s
    Code of Business Conduct and Ethics as well as any and all of
    policies, procedures and instructions of Company.



 



    5. RESTRICTIVE COVENANTS.  In
    consideration of the compensation, contract term, potential
    Severance Benefits, continued employment provided by Company,
    and access to Proprietary Information, as defined below,
    necessary to the performance of Executive’s duties
    hereunder, Executive hereby agrees to the following during
    his/her
    employment and thereafter as provided:



 



    5.1 NON-DISCLOSURE.  Except in the proper
    performance of this Agreement, Executive agrees to hold all
    Proprietary Information in the strictest confidence, and to
    refrain from making any unauthorized use or disclosure of such
    information both during Executive’s employment and at all
    times thereafter. Executive shall not directly or indirectly
    disclose, reveal, transfer or deliver to any other person or
    business, any Proprietary Information which was obtained
    directly or indirectly by Executive from, or for, Company or by
    virtue of Executive’s employment with Company.
    “Proprietary Information” means Company’s trade
    secrets, ideas, processes and other confidential information not
    generally known that could have value to a third party such as
    plans for business development, marketing, business plans,
    budgets and financial statements of any kind, costs and
    suppliers, and information regarding the skills and compensation
    of other employees of the Company or employees of any company
    that contracts to provide services to the Company. Proprietary
    Information also includes information of third parties to which
    Executive had access by virtue of employment with the Company,
    including, but not limited to, information regarding customers
    such as: (i) the identity of Company’s customers,
    customer contacts, and sales prospects; (ii) the nature,
    extent, frequency, methodology, cost, price and profit
    associated with services and products purchased by customers
    from Company; (iii) the names, office hours, telephone
    numbers and street addresses of its purchasing agents or other
    buyers or customer contacts; (iv) Company and customer
    billing procedures; (v) Company and customer credit limits
    and payment practices; (vi) Company and customer
    organizational structure; and (vii) any information related
    to past, current or future acquisitions between Company or
    Company-affiliated entities including Company information used
    or relied upon for said acquisition.



 



    5.2 NON-SOLICITATION OF
    EMPLOYEES.  Executive acknowledges and agrees that
    during the course of Executive’s employment with Company,
    Executive will come into contact with Company employees and
    acquire information regarding their knowledge, skills,
    abilities, salaries, commissions, benefits, and other matters
    that are not generally known to the public. Executive further
    acknowledges and agrees that hiring, recruiting, soliciting, or
    inducing the termination of such employees will be detrimental
    and harmful to Company’s business. Accordingly, Executive
    agrees that while employed by Company and for a period of one
    year following the termination of Executive’s employment
    (whether termination is voluntary or involuntary), Executive
    will not directly or indirectly















 







    solicit, hire, recruit or otherwise encourage or arrange for any
    executive or employee to terminate employment with Company or
    any other Company-affiliated entity except in the proper
    performance of this Agreement. This prohibition against
    solicitation shall include but not be limited to:
    (i) identifying to other employers or their agents,
    recruiting or staffing firms, or other third parties the Company
    employee(s) who have specialized knowledge concerning
    inventions, processes, methods, or other confidential affairs or
    who have contacts, experience, or relationships with particular
    customers; (ii) disclosing or commenting to other employers
    or their agents, recruiting or staffing firms, or other third
    parties regarding the quality or quantity of work, specialized
    knowledge, or personal characteristics of any person still
    employed by Company or any other Company-affiliated entity; and
    (iii) providing such information to prospective employers
    or their agents, recruiting or staffing firms, or other third
    parties preceding possible employment.



 



    5.3 NON-SOLICITATION OF
    CUSTOMERS.  Executive agrees that during and for
    one year following the termination of Executive’s
    employment with Company (whether such termination is voluntary
    or involuntary), Executive shall not, directly or indirectly,
    for the benefit of any person or entity other than the Company,
    seek, solicit, divert, take away, obtain or accept work from any
    customer or prospective customer. In addition, Executive agrees
    that at all times after the voluntary or involuntary termination
    of Executive’s employment, Executive shall not seek,
    solicit, divert, take away, obtain, or accept work from of any
    customer or sales prospect of Company or any other
    Company-affiliated entity through the direct or indirect use of
    any Proprietary Information or by any other unfair or unlawful
    business practice.



 



    5.4 POST EMPLOYMENT
    COMPETITION.  Executive agrees that while employed
    by Company and, to the fullest extent allowed by law, for a
    period of one year following Executive’s termination of
    employment (whether such termination is voluntary or
    involuntary), Executive shall not engage in any business
    activity which competes directly or indirectly with the Company
    or the operations of any Company-affiliated entity regarding
    which Executive had information or knowledge. The Executive
    acknowledges that the Company and its subsidiaries are engaged
    in business in various states throughout the U.S. and that
    the Company intends to expand the geographic scope of its
    activities. Accordingly and in view of the nature of
    Executive’s position and responsibilities, the Executive
    agrees that the provisions of this Section shall be applicable
    to each state and each foreign country in which the Company may
    be engaged in business within the twelve-month period preceding
    the effective date of Executive’s termination of employment.



 



    5.5 NON-DISPARAGEMENT.  During
    Executive’s employment with Company and thereafter,
    Executive agrees not to make any statement or take any action
    which disparages, defames, or places in a negative light
    Company, Company-affiliated entities, or its or their
    reputation, goodwill, commercial interests or past and present
    officers, directors and employees.



 



    5.6 COOPERATION WITH LEGAL
    MATTERS.  During Executive’s employment with
    Company and thereafter, Executive shall cooperate with Company
    and any Company-affiliated entity in its or their investigation,
    defense or prosecution of any potential, current or future legal
    matter in any forum, including but not limited to lawsuits,
    administrative charges, audits, arbitrations, and internal and
    external investigations. Executive’s cooperation shall
    include, but is not limited to, reviewing and preparing
    documents and reports, meeting with attorneys representing any
    Company-affiliated entity, providing truthful testimony, and
    communicating Executive’s knowledge of relevant facts to
    any attorneys, experts, consultants, investigators, employees or
    other representatives working on behalf of an Company-affiliated
    entity. Except as required by law, Executive agrees to treat all
    information regarding any such actual or potential investigation
    or claim as confidential. Executive also agrees not to discuss
    or assist in any litigation, potential litigation, claim, or
    potential claim with any individual (or their attorney or
    investigator) who is pursuing, or considering pursuing, any
    claims against the Company or a Company-affiliated entity unless
    required by law. In performing the tasks outlined in this
    Section 5.6, Executive shall be bound by the covenants of
    good faith and veracity set forth in ABM’s Code of Business
    Conduct and Ethics and by all legal obligations. Nothing herein
    is intended to prevent Executive from complying in good faith
    with any subpoena or other affirmative legal obligation.
    Executive agrees to notify the Company immediately in the event
    there is a request for information or inquiry pertaining to the
    Company, any Company-affiliated entity, or Executive’s
    knowledge of or employment with the Company. In performing
    responsibilities under this Section, Executive shall be
    compensated for Executive’s time at an hourly rate of $250
    per hour. However, during any period in which Executive is an
    employee of ABM or is receiving payments pursuant to this
    Agreement or pursuant to the terms of any other ABM plan,
    Executive shall not be so compensated.





    

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    5.7 REMEDIES AND DAMAGES.  The parties
    agree that compliance with Sections 5.1 — 5.6 of
    the Agreement is necessary to protect the business and goodwill
    of Company, that the restrictions contained herein are
    reasonable and that any breach of this Section will result in
    irreparable and continuing harm to Company, for which monetary
    damages may not provide adequate relief. Accordingly, in the
    event of any actual or threatened breach of this Section by
    Executive, Company and Executive agree that Company shall be
    entitled to all appropriate remedies, including temporary
    restraining orders and injunctions enjoining or restraining such
    actual or threatened breach. Executive hereby consents to the
    issuance thereof forthwith by any court of competent
    jurisdiction.



 



    5.8 LIMITATIONS.  Nothing in this
    Agreement shall be binding upon the parties to the extent it is
    void or unenforceable for any reason in the State of Employment,
    including, without limitation, as a result of any law regulating
    competition or proscribing unlawful business practices.



 



    6. EXTENSION OF EMPLOYMENT.



 



    6.1 RENEWAL.  Absent at least 60 days
    written notice of termination of employment or notice of
    non-renewal from Company to Executive prior to expiration of the
    then current Initial or Extended Term, as applicable, of this
    Agreement, employment hereunder shall continue for an Extended
    Term (or another Extended Term, as applicable) of one year.



 



    6.2 NOTICE OF NON-RENEWAL.  In the event
    that notice of non-renewal is given 60 days prior to the
    expiration of the then Initial or Extended Term, as applicable,
    of this Agreement, employment shall continue on an “at
    will” basis following the expiration of such Initial or
    Extended Term. In such event, Company shall have the right to
    terminate Executive’s employment, position or compensation.
    Executive shall remain eligible for Severance Benefits pursuant
    to ABM’s Severance Policy.



 



    7. TERMINATION OF EMPLOYMENT.



 



    7.1 TERMINATION FOR CAUSE.  Company may
    terminate Executive’s employment hereunder at any time
    without notice subject only to a good faith determination by the
    Board of Cause. “Cause” means the occurrence of one of
    the following: (i) serious misconduct, dishonesty,
    disloyalty, or insubordination; (ii) Executive’s
    conviction (or entry of a plea bargain admitting criminal guilt)
    of any felony or a misdemeanor involving moral turpitude;
    (iii) drug or alcohol abuse, that has a material or
    potentially material effect on the Company’s reputation
    and/or on
    the performance of Executive’s duties and responsibilities
    under this Agreement; (iv) failure to substantially perform
    Executive’s duties and responsibilities under this
    Agreement for reasons other than death or Disability, as defined
    below; (v) repeated inattention to duty for reasons other
    than death or Disability; and, (vi) any other material
    breach of this Agreement by Executive. In the event of a
    termination following the Board’s good faith determination
    of Cause, employee shall receive no Severance Benefits.



 



    7.2 VOLUNTARY TERMINATION BY
    EXECUTIVE.  At any time, Executive may terminate
    employment hereunder by giving Company 60 days prior
    written notice. Executive may terminate employment upon such
    shorter period of notice as may be reasonable under the
    circumstances. For a voluntary termination for reasons other
    than the Executive’s Disability, Executive will not receive
    any prorated Bonus.



 



    7.3 DISABILITY OR DEATH.  Employment
    hereunder shall automatically terminate upon the death of
    Executive and may be terminated at the Company’s discretion
    as a result of Executive’s Disability.
    “Disability” means Executive’s substantial
    inability to perform Executive’s essential duties and
    responsibilities under this Agreement for either 90 consecutive
    days or a total of 120 days out of 365 consecutive days as
    a result of a physical or mental illness, injury or impairment,
    all as determined in good faith by the Company. Upon termination
    due to death or Disability, Company shall pay when due to
    Executive, or, upon death, Executive’s designated
    beneficiary or estate, as applicable, any and all previously
    earned, but as yet unpaid, salary, and reimbursement of business
    expenses which would have otherwise been payable to Executive
    under this Agreement, through the end of the month in which
    Disability or death occurs. In the event of termination due to
    death or Disability, Company shall pay to Executive, or, in the
    event of death, to Executive’s designated beneficiary or
    estate, as applicable, a prorated Bonus based on the length of
    performance in the applicable performance period prior to
    Disability or death. Any prorated Bonus payable under this
    paragraph shall be paid at the end of the applicable performance
    period when such payments are made to other participants and in
    accordance with the terms of the






    

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    applicable plan or program. Executive shall not be eligible for
    any vesting of equity compensation after the Executive’s
    termination date, except as pursuant to the 1996 and 2002
    Price-Vested Stock Option plans.



 



    7.4 TERMINATION WITHOUT CAUSE.  Company
    may terminate Executive’s employment hereunder without
    Cause at any time during the then-current Initial or Extended
    Term of this Agreement, as applicable, by giving Executive
    90 days written notice. Upon such termination without
    Cause, Executive’s right to severance benefits, if any,
    shall be governed by the terms of the ABM Severance Policy or
    any policy or plan of the Company as in effect from time to time
    that provides for payment of severance amounts upon such a
    termination of employment (“Severance Benefits”).
    Executive must execute a full release of all claims within
    60 days following termination of employment in order to be
    eligible for Severance Benefits.



 



    7.5 CONDITIONS TO PAYMENT AND ACCELERATION; CODE
    SECTION 409A.  Notwithstanding anything
    contained herein to the contrary, Executive shall not be
    considered to have terminated employment with the Company for
    purposes of this Agreement and no payments shall be due to
    Executive under this Agreement or any policy or plan of the
    Company as in effect from time to time, providing for payment of
    amounts on termination of employment unless Executive would be
    considered to have incurred a “separation from
    service” from the Company within the meaning of
    Section 409A. To the extent required in order to avoid
    accelerated taxation
    and/or tax
    penalties under Section 409A, amounts that would otherwise
    be payable and benefits that would otherwise be provided
    pursuant to this Agreement during the six-month period
    immediately following Executive’s termination of employment
    shall instead be paid on the first business day after the date
    that is six months following Executive’s termination of
    employment (or upon Executive’s death, if earlier).



 



    7.6 EXCESS PARACHUTE PAYMENTS.  Subject to
    a Severance Agreement between Executive and the Company approved
    by the Board of Directors or the Compensation Committee of ABM
    Industries Incorporated, if any amount or benefit to be paid or
    provided under the ABM Severance Policy, an equity award,
    and/or any
    other agreement between Executive and the Company would be an
    Excess Parachute Payment but for the application of this
    sentence, then the payments and benefits to be paid or provided
    under the Severance Program, equity award,
    and/or any
    other agreement will be reduced to the minimum extent necessary
    (but in no event to less than zero) so that no portion of any
    such payment or benefit, as so reduced, constitutes an Excess
    Parachute Payment; provided, however, that the foregoing
    reduction will not be made if such reduction would result in
    Executive receiving an amount determined on an after-tax basis,
    taking into account the excise tax imposed pursuant to
    Section 4999 of the Code, or any successor provision
    thereto, any tax imposed by any comparable provision of state
    law and any applicable federal, state and local income and
    employment taxes (the “After-Tax Amount”) less than
    90% of the After-Tax Amount of the severance payments Executive
    would have received under the Company’s Severance Policy or
    under any other agreement without regard to this clause. Whether
    requested by the Executive or the Company, the determination of
    whether any reduction in such payments or benefits to be
    provided under this Agreement or otherwise is required pursuant
    to the preceding sentence, and the value to be assigned to the
    Executive’s covenants in Section 5 hereof for purposes
    of determining the amount, if any, of the “excess parachute
    payment” under Section 280G of the Code will be made
    at the expense of the Company by the Company’s independent
    accountants or benefits consultant. The fact that
    Executive’s right to payments or benefits may be reduced by
    reason of the limitations contained in this paragraph will not
    of itself limit or otherwise affect any other rights of
    Executive under any other agreement. In the event that any
    payment or benefit intended to be provided is required to be
    reduced pursuant to this paragraph, Executive will be entitled
    to designate the payments
    and/or
    benefits to be so reduced in order to give effect to this
    paragraph, provided, however, that payments that do not
    constitute deferred compensation within the meaning of
    Section 409A will be reduced first. The Company will
    provide Executive with all information reasonably requested by
    Executive to permit Executive to make such designation. In the
    event that Executive fails to make such designation within 10
    business days after receiving notice from the Company of a
    reduction under this paragraph, the Company may effect such
    reduction in any manner it deems appropriate. The term
    “Excess Parachute Payment” as used in this paragraph
    means a payment that creates an obligation for Executive to pay
    excise taxes under Section 280G of the Internal Revenue
    Code of 1986, as amended, or any successor statute.



 



    7.7 ACTIONS UPON TERMINATION.  Upon
    termination of employment hereunder, Executive shall immediately
    resign as an officer
    and/or
    director of Company and of any Company subsidiaries or
    affiliates, including any LLCs or joint ventures, as applicable.
    At Company’s request, Executive also agrees to resign from
    the board of any Taft-Hartley trust fund joined during
    Executive’s employment with Company. Executive shall
    promptly return






    

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    and release all Company property and Proprietary Information, in
    all forms, in Executive’s possession to Company. Company
    shall pay Executive when due any and all previously earned, but
    as yet unpaid, salary and reimbursement of business expenses
    submitted in accordance with Company policy as in effect. Except
    as provided in Sections 7.3 and 7.4, Executive must be
    employed by the Company at the end of the Fiscal Year to earn a
    Bonus.



 



    7.8 WITHHOLDING AUTHORIZATION.  To the
    fullest extent permitted under the laws of the State of
    Employment hereunder, Executive authorizes Company to withhold
    from any Severance Benefits otherwise due to Executive and from
    any other funds held for Executive’s benefit by Company,
    any damages or losses sustained by Company as a result of any
    material breach or other material violation of this Agreement by
    Executive, pending resolution of any underlying dispute.



 



    8. NOTICES.



 



    8.1 ADDRESSES.  Any notice required or
    permitted to be given pursuant to this Agreement shall be in
    writing and delivered in person, or sent prepaid by certified
    mail, overnight express, or electronically to the party named at
    the address set forth below or at such other address as either
    party may hereafter designate in writing to the other party:



 


	 	 	 	 	 
	

    Executive:


	
 
	
 
	
 
	
    Sarah McConnell

	
 
	
 
	
 
	
 
	
    310 East 70th Street, Unit 12U

	
 
	
 
	
 
	
 
	
    New York, NY  10021

	
 
	
 
	
 
	
 
	
    Email: Sarah.McConnell@abm.com

	
 
	
 
	
 
	
 
	
 

	

    Company:


	
 
	
 
	
 
	
    ABM Industries Incorporated

	
 
	
 
	
 
	
 
	
    160 Pacific Avenue, Suite 222

	
 
	
 
	
 
	
 
	
    San Francisco, CA  94111

	
 
	
 
	
 
	
 
	
    Attention:  Chief Executive Officer

	
 
	
 
	
 
	
 
	
 

	

    Copy:


	
 
	
 
	
 
	
    ABM Industries Incorporated

	
 
	
 
	
 
	
 
	
    160 Pacific Avenue, Suite 222

	
 
	
 
	
 
	
 
	
    San Francisco, CA  94111

	
 
	
 
	
 
	
 
	
    Attention: Senior Vice President of Human Resources









 



    8.2 RECEIPT.  Any such notice shall be
    assumed to have been received when delivered in person or
    48 hours after being sent in the manner specified above.



 



    9. GENERAL PROVISIONS.



 



    9.1 GOVERNING LAW.  This Agreement shall
    be interpreted and enforced in accordance with the laws of the
    State of Employment, which, for purposes of this Agreement,
    shall mean the state where Executive is regularly and
    customarily employed and where Executive’s primary office
    is located.



 



    9.2 NO WAIVER.  Failure by either party to
    enforce any term or condition of this Agreement at any time
    shall not preclude that party from enforcing that provision, or
    any other provision of this Agreement, at any later time.



 



    9.3 SEVERABILITY.  It is the desire and
    intent of the parties that the provisions of this Agreement be
    enforced to the fullest extent permissible under the law and
    public policies applied in each jurisdiction in which
    enforcement is sought. Accordingly, in the event that any
    provision of this Agreement would be held in any jurisdiction to
    be invalid, prohibited or unenforceable for any reason, such
    provision, as to such jurisdiction, shall be ineffective,
    without invalidating the remaining provisions of this Agreement
    or affecting the validity or enforceability of such provision in
    any other jurisdiction. Notwithstanding the foregoing, if such
    provision could be more narrowly drawn so as not to be invalid,
    prohibited or unenforceable in such jurisdiction, it shall, as
    to such jurisdiction, be either automatically deemed so narrowly
    drawn, or any court of competent jurisdiction is hereby
    expressly authorized to redraw it in that manner, without
    invalidating the remaining provisions of this Agreement or
    affecting the validity or enforceability of such provision in
    any other jurisdiction.





    

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    9.4 SURVIVAL.  All terms and conditions of
    this Agreement which by reasonable implication are meant to
    survive the termination of this Agreement, including but not
    limited to the provisions of Sections 5.1 — 5.6
    of this Agreement, shall remain in full force and effect after
    the termination of this Agreement.



 



    9.5 REPRESENTATIONS BY
    EXECUTIVE.  Executive represents and agrees that
    Executive has carefully read and fully understands all of the
    provisions of this Agreement, that Executive is voluntarily
    entering into this Agreement and has been given an opportunity
    to review all aspects of this Agreement with an attorney, if
    Executive chooses to do so. Executive understands
    he/she is
    also now eligible for Severance Benefits to which Executive was
    not previously entitled and acknowledges the value of such
    benefits. Executive also represents that
    he/she will
    not make any unauthorized use of any confidential or Proprietary
    Information of any third party in the performance of
    his/her
    duties under this Agreement and that Executive is under no
    obligation to any prior employer or other entity that would
    preclude or interfere with the full and good faith performance
    of Executive’s obligations hereunder.



 



    9.6 ENTIRE AGREEMENT.  Unless otherwise
    specified herein, this Agreement sets forth every contract,
    understanding and arrangement as to the employment relationship
    between Executive and Company, and may only be changed by a
    written amendment signed by both Executive and Company.



 



    9.6.a NO EXTERNAL EVIDENCE.  The parties intend
    that this Agreement speak for itself, and that no evidence with
    respect to its terms and conditions other than this Agreement
    itself may be introduced in any arbitration or judicial
    proceeding to interpret or enforce this Agreement.



 



    9.6.b OTHER AGREEMENTS.  It is specifically
    understood and accepted that this Agreement supersedes all oral
    and written employment agreements between Executive and Company
    prior to the date of this Agreement. However, it is expressly
    understood that, notwithstanding any provision to the contrary
    contained in this Agreement (whether explicit or implicit), the
    terms and restrictions set forth in any Asset Purchase
    Agreement, Merger Agreement, Stock Purchase Agreement or any
    agreement ancillary thereto, entered into by and between
    Executive and any Company-affiliated entity setting forth
    Executive’s duties under a Covenant Not To Compete in
    connection with the sale of such assets, shall remain in full
    force and effect during employment and thereafter.



 



    9.6.c AMENDMENTS.  This Agreement may not be
    amended except in a writing approved by the Board and signed by
    the Executive and the President or Chief Executive of Company.



 



    IN WITNESS WHEREOF, Executive and Company have executed
    this Agreement as of the date set forth above.



 



    Executive:  Sarah McConnell



 


			
	 	    Signature: 
	
    /s/  Sarah
    McConnell








			
	 	    Date: 
	
    August 1, 2008









 



    Company:   ABM Industries Incorporated



 


			
	 	    Signature: 
	
    /s/  Erin
    Andre








			
	 	    Title: 
	
    Sr. Vice President, Human Resources




			
	 	    Date: 
	
    August 1, 2008






    

    6